Harris County jail population reductions may be short-lived if judges, new DA don't act responsibly

It wasn't long ago that the Harris County Jail - the largest in Texas and one of the largest in the country - was bursting at the seams and county commissioners were seeking voter approval to issue more debt to expand the facility. "There is no question that we need more jail cells," County Judge Ed Emmett told the Houston Chronicle after voters rejected jail expansion in 2007, yet that turned out to be flat-out wrong.

Harris County has successfully reduced its jail population in the last couple of years to the point where they no longer must ship inmates to jails in Louisiana and other Texas counties due to overcrowding. And despite Chicken-Little pronouncements from the police union and tuff-on-crime zealots, the sky didn't fall and in fact crime continued to decline in Houston. As of August 1, the jail was at 86% capacity, with zero inmates housed in other counties, and there's little question that those numbers could decline even more through relatively minor policy tweaks. But that would require the cooperation of judges and the district attorney's office, and there are few signs at  the moment that those public officials will act in the taxpayers' interest to further reduce jail costs.

The most significant causes of reduced jail populations in Harris County stem from changes in policies at the District Attorney's office: The cessation of charging people caught with drug paraphernalia with felonies based on trace amounts, and the creation of the DIVERT program for DWI defendants, which reduced the long-time trend of offenders choosing jail over probation for low-level DWI offenses. Unfortunately, the incoming District Attorney has pledged to reverse both those policies, meaning we can expect the Harris jail population to climb upwards beginning next year. Soon thereafter, the inevitable calls to build more jail space will resume in earnest, with more Chicken Littles telling us the sky will fall if more people aren't locked up for longer periods.

It doesn't have to be that way, and besides the DA, local judges are primarily responsible for excessive incarceration in H-Town. Last weekend, the Houston Chronicle ran an important story implicating jail populations ("Judges leery of no-cost personal bonds," Sept. 9) that merits Grits readers' attention. The story focused on a familiar theme to long-time Grits readers: the failure of Harris County judges to utilize personal bonds, requiring bail in most cases regardless of risk assessments from the county's Pretrial Services division. The story by James Pinkerton opened:

Whether the charge is robbery, shoplifting or drug use, most people arrested in Harris County stay in jail because they can't afford to post bail.

That's largely because this conservative county and its judges have been reluctant to grant no-cost personal bonds that are increasingly popular in other large metropolitan areas in Texas, say attorneys, judges and those in the bail bond industry.

"There's no good reason for it,'' said Mark Hochglaube, the trial division chief of the Harris County Public Defenders Office. "I can't speak for what they do in other counties, but I can tell you the general sense of the culture here is one that is opposed to pretrial release. I wish it weren't, but it's as basic as that."

Last year, just 5.2 percent of slightly more than 94,000 people arrested by Harris County police agencies got out of jail on no-cost personal recognizance bonds, according to a report by the Harris County Pretrial Services office.

In July, 65 percent of the county's 9,133 inmates were pretrial detainees rather than convicted criminals serving sentences, according to the Office of Criminal Justice Coordination.

If judges granted personal bonds based on risk assessments, the jail population would quickly drop:

Last year the pretrial office screened about 80,000 defendants, and [Pretrial Services Chief Carol] Oeller said her officers recommended that 25 percent of those arrested on felony charges and 40 percent of misdemeanor defendants be granted a PR bond.

However, judges granted a little more than 1 percent of the felony requests and 7.4 percent of the misdemeanors, or a combined 5.2 percent.

"I think sometimes the charge is given more weight than our risk assessment," said Oeller.

In Travis County, by contrast, judges approved personal bonds for more than 19,000 defendants, or "61 percent of those who were eligible."

The federal courts abolished bail in criminal cases long ago, as have several US states. Indeed, the United States is an outlier on this question: Besides here, only the Philippines still relies on commercial bail bonds, which have been abandoned everywhere else on the planet. Here, though, bail bondsmen are often politically influential locally, on the short list of campaign contributors in judicial and other criminal-justice related races.

Mark Hochglaube, the trial chief for the new Harris County public defenders office told the Chronicle that "bond practices in Harris County force some innocent defendants to plead guilty because they'd rather accept a plea deal and a short sentence than spend months in jail waiting for a trial. In a few cases, he said, defendants have been held awaiting trial longer than the maximum sentence they could have received."

It's not just felony cases, though. According to the Pretrial Services division's annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail last year. Of those, 4,441 were granted personal bonds, 2,608 paid cash bonds (meaning they paid the full bail amount themselves instead of using a bail bondsman), and 25,495 employed the services of commercial bail bond companies. That means 27,635 people, or 46% of misdemeanor defendants couldn't make bail and remained in jail either until they pleaded out or their case was otherwise resolved. Among felony defendants, 69% could not make bail and remained incarcerated until their cases were disposed. (That happens more quickly in Harris than some other jurisdictions because of the DA's direct filing system, but as defense attorney Paul Kennedy noted, it still results in a system designed to maximize pressure on defendants to accept a plea deal.)

These numbers demonstrate why, as corrections expert Tony Fabelo has noted, expanded pretrial detention has been the main driver of increased jail populations since the turn of the century. By his calculations, while statewide jail populations increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. In that sense, Harris County's situation isn't unique except for its massive scope and outsized costs.

Though only judges can approve personal bonds, Mark Hochglaube told the Chronicle, often in Harris County the defense bar doesn't even ask for them. "It's not just a failure of the judges, the district attorney - it's everybody. It's a failure of the defense bar. Even good attorneys don't ask for a personal bond. Everyone is indoctrinated with the idea that if you are charged with a felony you're not going to get a PR bond," he told the Chronicle.

If the incoming DA follows through on his promise to charge trace paraphernalia cases as felonies - a move that would not just clog the jail but boost felony court dockets and crime-lab backlogs - local defense attorneys and judges will need to overcome that "indoctrination," or else the county will soon be shipping pretrial detainees to Louisiana again. These are soluble problems, but the solutions begin with more fiscally responsible decision making by local elected officials.